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Monday, August 4, 2014

M.V.Act - sec/149(2) of the Act of 1988/sec.96(2) of the Act of 1939 - Hired Bus by A.P.S.R.T.C. - Liability of Insurance Company - Non- filing of cross objection by RTC - their Lordships of High court held that by mere hiring of insured buses by the owners to the APSRTC would not in any manner limit the liability and accountability of Insurance Companies to honour passengers/third party risks covered by the Insurance Policies issued by them infavour of the owners Notwithstanding the hiring of insured buses by the owners to the APSRTC, the Insurance Companies shall be solely and exclusively liable for payment of the compensation arising out of such passengers/third party claims unless any of the grounds in Section 149(2) of the Act of 1988/Section 96(2) of the Act of 1939 are made out... and further held the this is a well settled law decided by Division Bench is purely question of law - it can be raised even with out cross appeal and cross objection - Appeal by company was dismissed exonerating the APSRTC from liability = M.A.C.M.A No.830 of 2009 09-07-2014 The New India Assurance Co. Ltd,Rep. by its Branch Manager.... Appellant Chinthala Laxmi and others.. Respondents = 2014 - July - Part - http://judis.nic.in/judis_andhra/filename=11608

M.V.Act - sec/149(2) of the Act of 1988/sec.96(2) of the Act of 1939 - Hired Bus by A.P.S.R.T.C. - Liability of Insurance Company - Non- filing of cross objection by RTC- not bars to raise legal plea - their Lordships of High court held that by mere hiring of insured buses by the owners to the APSRTC would not in any manner limit the liability and accountability of Insurance Companies to honour passengers/third party risks covered by the Insurance Policies issued by them infavour of the owners Notwithstanding the hiring of insured buses by the owners to the APSRTC, the Insurance Companies shall be solely and  exclusively liable for payment of the compensation arising out of
such passengers/third party claims unless any of the grounds in Section 149(2) of the Act of 1988/Section 96(2) of the Act of 1939 are made out... and further held the this is a well settled law decided by Division Bench is purely question of law - it can be raised even with out cross appeal and cross objection - Appeal by company was dismissed exonerating the APSRTC from liability =

We hold that mere hiring of insured buses by the owners to the
APSRTC would not in any manner limit the liability and
accountability of the Insurance Companies, be it under the Act of
1988 or the Act of 1939, to honour passengers/third party risks
covered by the Insurance Policies issued by them in favour of the
owners. Notwithstanding the hiring of insured buses by the owners
to the APSRTC, the Insurance Companies shall be solely and
exclusively liable for payment of the compensation arising out of
such passengers/third party claims unless any of the grounds in
Section 149(2) of the Act of 1988/Section 96(2) of the Act of 1939
are made out...
8)      As the legal point raised by the appellant is no more res integra and
decided by Full Bench of our High Court, the argument of the appellant
cannot be countenanced.  Hence, the appeal is liable to be dismissed.
Sofaras its alternative argument is concerned, the same is also not
maintainable.
As rightly submitted by learned counsel for APSRTC the
question of liability was thrown open by the Insurance Company by filing
the appeal.
Therefore, APSRTC has every right to argue in terms of Full
Bench decision to its advantage despite its not preferring appeal against the
award passed by the Tribunal.
9)      In the result, this MACMA is dismissed and the award passed by the
Tribunal is modified to the effect that APSRTC (4th respondent in OP) is
not liable to answer the claim of the claimants.  Rest of the award shall
hold good.  No order as to costs in the appeal.
        As a sequel, miscellaneous applications pending, if any, shall stand
closed.
2014 - July - Part - http://judis.nic.in/judis_andhra/filename=11608
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

M.A.C.M.A No.830 of 2009

09-07-2014

The New India Assurance Co. Ltd,Rep. by its Branch Manager.... Appellant

Chinthala Laxmi and others.. Respondents

Counsel for Appellant: Sri B. Naresh

Counsel for Respondents 1 to 7: Sri Venkateswar Varnasi
 Counsel for Respondent No.10 : Mrs. D. Radhika

<Gist:

>Head Note:

?Cases referred:
1)      2001 (1) ALT 485
2)      2013 (1) ALT 727 (FB)


HONBLE SRI JUSTICE U. DURGA PRASAD RAO        
M.A.C.M.A. No.830 of 2009

JUDGMENT:  
        Challenging the award dated 21.12.2005 in O.P.No.632 of 2004
passed by the Chairman, M.A.C.T-cum-IV District Judge (FTC),
Karimnagar (for short the Tribunal), the New India Assurance Company
Limited preferred the instant appeal.
        The appellant herein is the 3rd respondent before the Tribunal;
respondents 1 to 7 in the appeal are claimants; respondent Nos.8 and 9
herein are the first and second respondents and respondent No.10/
APSRTC (hirer of the bus) is the 4th respondent before the Tribunal.
2)      Facts in nutshell are thus:
a)      Claimants 1 to 7 are the wife and children of the deceased
Chinthala Narsaiah. Their case is that on 05.04.2004 at about 3.00 PM
while the deceased was returning home on his bicycle and reached near old
petrol bunk, Sircilla, a hired APSRTC bus bearing No.AP 15 U 9975 being
driven by its driver in a rash and negligent manner and at high speed,
dashed the bicycle and thereby the deceased sustained fatal injuries and
died. It is averred that accident was occurred due to rash and negligent
driving of bus driver. It is further averred that the deceased by doing coolie
work was earning Rs.4,000/- per month and fending his family and due to
his death the claimants became destitutes. On these pleas, claimants filed
O.P.No.632 of 2004 against respondents 1 and 2, who are driver and owner
and respondents 3 and 4, who are insurer and hirer of the offending bus and
claimed Rs.2,00,000/- as compensation under different heads.
b)      R2/owner of hired bus opposed the claim denying all the petition
averments.  R.2 contended that the accident was occurred due to the fault of
deceased himself. R2 denied the age, avocation and income of the deceased
and urged to put the claimants in strict proof. Nextly, R2 contended that
R1/driver of the hired bus had valid and effective driving license as on the
date of the accident and therefore, R3/insurer and R4/hirer are liable for the
claim of the claimants. Finally, R2 contended that the claim is highly
excessive and exorbitant and prayed for dismissal of the O.P.
c)      R1/driver adopted the counter filed by R2.
d)      R3/Insurance Company opposed the claim denying all the petition
averments. R3 contended that offending bus was hired to APSRTC and
hence, RTC is liable to pay compensation. R3 further contended that there
is no negligence on the part of R1 and deceased was at fault.  R.3
contended that driver had no valid driving licence at the time of accident.
e)      R4/APSRTC submitted that there is no negligence on the part of R1
and accident was happened due to negligence of the deceased himself.  It
further submitted that they are not liable to pay any compensation, as the
bus was hired from R2 who got insured the same with R3.  Hence, R1 to
R3 are responsible for payment of compensation.
f)      During trial P.Ws.1 and 2 were examined and Exs.A.1 to A5 were
marked on behalf of claimants. Ex.B1policy copy was marked on behalf
of respondents.
g)      A perusal of the award would show with reference to issue No.1, the
Tribunal having relied upon the eye-witness account of PW.2 coupled with
Ex.A1-FIR, Ex.A2-inquest report and Ex.A3-charge sheet, held that the
accident was occurred due to fault of RTC driver.
h)      Issue No.2 relating to the driving licence, the Tribunal on perusal of
Ex.A5Form No.54, held that R1/driver was having valid driving licence.
i)      Then, issue No.3 regarding insurance policy is concerned, the
Tribunal having perused Ex.B1policy held that insurance policy was
subsisting at the time of accident.
j)      Issue No.4 which relates to quantum of compensation, the Tribunal
after careful analysis of oral and documentary evidence awarded
Rs.1,99,200/- against all the respondents under different heads as follows:
        Loss of dependency              Rs. 1,87,200-00
        Loss of consortium              Rs.    10,000-00
        Funeral expenses                        Rs.      2,000-00
                                                                    ------------
---
                                                Total     Rs. 1,99,200-00
                                                                   -------------
---
     Hence, the appeal by the Insurance Company.
3)      Heard arguments of Sri B.Naresh, learned counsel for
appellant/Insurance Company, Sri Venkateswar Varanasi, learned counsel
for respondents 1 to 7/claimants and Mrs.D.Radhika, learned counsel for
respondent No.10/APSRTC. Notice sent to respondents 8 and 9 not yet
returned.  However, since they suffered decree before the Tribunal, their
absence is not a consequence in this appeal in view of the decision reported
in Meka Chakra Rao vs. Yelubandi Babu Rao @ Reddemma and others .    
4)      Challenging the award insofar as fixing liability on Insurance
Company jointly and severally along with other respondents, learned
counsel for appellant argued that though the bus was insured with
appellant/Insurance Company, but the owner of the bus hired the same to
APSRTC and at the relevant time of accident, the bus was under the
control and possession of APSRTC and driver also belongs to Corporation
and as such, the owner had absolutely no control over the vehicle at the
time of accident and hence, for all practical purposes APSRTC was the
owner of the vehicle.  Since no liability can be fastened on the original
owner, the question of Insurance Company indemnifying the same does
not arise.  The Tribunal without considering these aspects, wrongly
fastened the liability on Insurance Company also.  He thus at the first
instance, prayed to exonerate the Insurance Company from the liability and
allow the appeal.
     Learned counsel advanced an alternative argument also.  He
submitted that in view of Full Bench judgment of our High Court in
APSRTC vs. B.Kanakaratnabai  holding that mere hiring of bus by the
owner to APSRTC would not limit the liability and accountability of the
Insurance Company, if this appellate Court declines to agree with the
appellants argument, it may dismiss the appeal by confirming the award of
the Tribunal.  But, while so dismissing, the Court may not exonerate
APSRTC from the liability as fixed by the Tribunal jointly on all the
respondents since APSRTC has not filed any appeal against the award to
exempt it from liability.
5)      Per contra, learned counsel for APSRTC argued that in view of Full
Bench Judgment, the entire liability rests on owner and insurer of the
vehicle but not on the Corporation despite the fact that bus was hired with
APSRTC.  Learned counsel further argued that though APSRTC has not  
preferred any appeal, still, it can raise this argument since question of
liability was thrown upon in the appeal.
6)      In the light of above rival arguments, the point for determination in
this appeal is:
Which of the respondents are liable to answer the claimants?
7) POINT: In the recent Full Bench judgment, our High Court answering
the similar points raised by the Insurance Company in the present appeal
has laid down thus:
We hold that mere hiring of insured buses by the owners to the
APSRTC would not in any manner limit the liability and
accountability of the Insurance Companies, be it under the Act of
1988 or the Act of 1939, to honour passengers/third party risks
covered by the Insurance Policies issued by them in favour of the
owners. Notwithstanding the hiring of insured buses by the owners
to the APSRTC, the Insurance Companies shall be solely and 
exclusively liable for payment of the compensation arising out of
such passengers/third party claims unless any of the grounds in
Section 149(2) of the Act of 1988/Section 96(2) of the Act of 1939
are made out...
8)      As the legal point raised by the appellant is no more res integra and
decided by Full Bench of our High Court, the argument of the appellant
cannot be countenanced.  Hence, the appeal is liable to be dismissed.
Sofaras its alternative argument is concerned, the same is also not
maintainable.  As rightly submitted by learned counsel for APSRTC the
question of liability was thrown open by the Insurance Company by filing
the appeal.  Therefore, APSRTC has every right to argue in terms of Full
Bench decision to its advantage despite its not preferring appeal against the
award passed by the Tribunal.
9)      In the result, this MACMA is dismissed and the award passed by the
Tribunal is modified to the effect that APSRTC (4th respondent in OP) is
not liable to answer the claim of the claimants.  Rest of the award shall
hold good.  No order as to costs in the appeal.
        As a sequel, miscellaneous applications pending, if any, shall stand
closed.
_________________________  
U. DURGA PRASAD RAO, J    
Date: 09.07.2014

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